Natalie Birch and Secretary, Department of Social Services
[2015] AATA 3
•5 January 2015
[2015] AATA 3
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3384
Re
Natalie Birch
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Miss E A Shanahan
Date 5 January 2015 Place Melbourne The Tribunal affirms the decision under review.
[sgd]........................................................................
Miss E A Shanahan
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension – applicant has Down Syndrome − intellectual disability and late onset epilepsy – New Zealand citizen – in receipt of a pension in New Zealand – born in the United Kingdom – failure to satisfy the requirements of the Social Security Agreement between the Government of Australia and the Government of New Zealand (New Zealand Agreement) – decision affirmed.
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (New Zealand Agreements) Act 1999 – Schedule 3 of this Act contains the Social Security Agreement between the Government of Australia and Government of New Zealand (the New Zealand Agreement)
REASONS FOR DECISION
Miss E A Shanahan
On 18 November 2013 Ms Birch lodged a claim with Centrelink for the disability support pension (DSP) via her nominee, her mother Mrs Carol King. Ms Birch had moved to Melbourne from New Zealand on 2 November 2013. She is a New Zealand citizen and had received a supported living benefit in that country. Centrelink rejected the claim on 18 December 2013 because Ms Birch’s severe disability had been present from her birth on 29 September 1978; and because she was born in the United Kingdom (UK) (Ms Birch arrived in New Zealand with her parents at the age of four). As a result, Ms Birch did not meet the normal residence rules for DSP as set out in s 94 of the Social Security Act 1991 (the Act) or the residency requirements under Schedule 3 (Agreement on Social Security between the Government of Australia and the Government of New Zealand) of the Social Security (International Agreements) Act 1999 (the New Zealand Agreement).
On 7 January 2014 Mrs King requested a review of the decision. On 11 April 2014 an authorised review officer (ARO) affirmed the decision on the grounds that Ms Birch was not considered a resident of Australia for the purposes of claiming DSP under the Act or the New Zealand Agreement.
On 2 May 2014 Ms Birch lodged an application for review of the ARO’s decision with the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the decision on 18 June 2014 because she did not meet the residency requirements for DSP stipulated in the Act or the New Zealand Agreement. On 2 July 2014 Ms Birch lodged an application with this Tribunal for a review of the SSAT decision. She argued that the SSAT decision was discriminatory and contrary to the United Nations Convention on the Rights of Persons with Disabilities; and that Ms Birch’s level or severity of disability had risen in New Zealand, after the onset of her grand mal epilepsy at the age of 20 (in late 1998).
Ms Birch was represented by her mother, Mrs Carol King, and her stepfather Mr Steven King. Mr Tim de Uray, Principal Government Lawyer, appeared on behalf of the Secretary, Department of Social Services (the Secretary). The Tribunal was provided with documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and these were accepted into evidence as Exhibit number R1. Ms Birch did not give evidence except to affirm or agree with some of the statements made on her behalf by her mother.
Ms Birch’s parents immigrated to New Zealand in 1975. Her father, who died in 1987, had a contract to teach in New Zealand. Her sister was born in New Zealand in 1976. Then the family returned to the UK as Mrs King’s mother was ill and required care. Ms Birch was born in the UK, some nine months after their return, and was diagnosed with Down Syndrome at birth. Her parents maintained their permanent residence status in New Zealand, while residing in the UK. The family, now consisting of the parents and two daughters, returned to New Zealand when Ms Birch was four.
Ms Birch continued to reside in New Zealand. She holds New Zealand citizenship. Her older sister, Samantha, moved to Melbourne with her husband and children. As Mrs King is now 67 years old, she decided that she should make arrangements for Ms Birch’s ongoing care should anything happen to her. The best solution seemed to be for Mr and Mrs King and Ms Birch to move to Australia as Samantha had undertaken to care for Ms Birch once her mother and stepfather became unable to do so.
Before leaving New Zealand, Mrs King made enquiries with the New Zealand government and also, via Samantha, with Centrelink in Australia about Ms Birch’s eligibility for a pension in Australia. Upon questioning from the Tribunal, Mrs King stated that she had informed Centrelink that Ms Birch was a New Zealand citizen. However, she believed she did not inform Centrelink that Ms Birch had been born in the UK and was diagnosed with Down Syndrome and its accompanying disabilities at birth. Mrs King was aware that Ms Birch did not qualify for any social security pension from the UK given the short duration of her residence there.
Mrs King arrived in Australia with her husband and daughter on 2 November 2013. On the 18 November she lodged an application for DSP for Ms Birch. In addition to Down Syndrome, Ms Birch has been diagnosed with what was termed a benign or innocent systolic cardiac murmur. She also developed grand mal epilepsy just before her 21st birthday.
Before developing epilepsy Ms Birch had attended special primary, secondary and tertiary schools. While participating in a program for the disabled, she obtained supported employment for three hours per week at a McDonald’s outlet. Ms Birch and her family expected and hoped that she would be able to increase her working hours. At first, her grand mal epilepsy was poorly controlled and she suffered up to six seizures a month. Since developing epilepsy Ms Birch has been unable to resume any form of paid work but she is active in other areas and volunteers for two hours a week at the Society of St Vincent de Paul. She also attends community events in the city and is interested in art and sport.
Ms Birch was prescribed various anti-epileptics in New Zealand and her epileptiform seizures were reasonably well controlled until February 2013, when she suffered two grand mal episodes. She was admitted to hospital for a short period me for observation. Investigation revealed that the dose of Ms Birch’s sodium valproate (Epilim) was sub‑therapeutic. The dosage was therefore increased. This controlled the seizures but made her extremely sleepy. However, a combination therapy of Epilim 400 mgs morning and 200 mgs at night combined with Topiramate 25 mgs twice daily has resulted in Ms Birch’s being free of seizures since February 2013, and less tired than she was on the higher doses of Epilim. Ms Birch has not worked since the onset of her epilepsy but she is now attending an employment service in the hope of finding work.
Ms Birch’s epilepsy has responded to her use of the contraceptive pill, as her seizures were more common during menstruation. Mrs King has also noted that anything that increases Ms Birch’s level of anxiety results in more frequent seizures. Ms Birch is now attending a neurology outpatient clinic at Sunshine and Western Hospitals and has recently undergone an MRI scan of her brain.
Mr and Mrs King have been informed that this scan has shown a midline cerebral abnormality which has been described as a tumour. The word tumour simply means a mass. From the description given by Mrs King, and some of the wording used in the neurologist’s explanation, it would seem that it is likely to be a benign tumour in the pituitary gland. The current treatment plan is to review the mass lesion every six months, to observe any changes in its size and/or shape. There is no suggestion of surgical intervention. The Tribunal has advised Mrs King to obtain a copy of the MRI result and to seek clarification of the likely diagnoses from the neurologist.
It would appear that control of the seizures has been good with the exception of the episodes in February 2013, although Ms Birch is said to experience absence seizures.
A qualified social worker conducted a job capacity assessment (JCA) of Ms Birch on 28 November 2013. Ms Birch’s Down Syndrome was considered in terms of intellectual function. It was assessed as quite severe, attracting an impairment rating of 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). Ms Birch’s grand mal epilepsy was assessed as not fully treated and stabilised; and therefore it did not attract an impairment rating. The assessor determined that Ms Birch did retain the capacity to work, for example, as a cleaner or kitchen hand, but would need employment services support.
RELEVANT LEGISLATION
Section 94 of the Act provides the qualifications for DSP:
94Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d)the person has turned 16; and
(da)in a case where the following apply:
(i) the person is under 35 years of age;
(ii) the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii) if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e)the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)is not an Australian resident; and
(B)is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and ...
Section 7 of the Act states:
(2) An Australian resident is a person who:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder.
Section 6 of the Social Security (New Zealand Agreements) Act 1999 states that:
6Overriding of social security law by scheduled New Zealand social security agreements
(1)The provisions of a scheduled New Zealand social security agreement have effect despite anything in the social security law.
(2)Subsection (1) applies to a provision of an agreement only in so far as the provision is in force and affects the operation of the social security law.
(3)If:
(a) immediately before he or she reaches pension age, a person is receiving a social security payment (other than age pension) solely because of the operation of a scheduled New Zealand social security agreement; and
(b) on reaching pension age, the person becomes qualified for age pension because of the operation of paragraph 43(1)(c) of the Social Security Act 1991;
the age pension is taken to be payable to the person under the agreement referred to in paragraph (a).
The New Zealand Agreement specifically applies to DSP, as stated in Article 2(1)(a)(ii). Article 2(2) sets out the three criteria DSP claimants must meet.
ARTICLE 2
Legislative Scope
1.Except as provided under paragraph 2, this Agreement shall apply to the following laws, as amended at the date of signature of this Agreement, and to any legislation that subsequently amends, supplements, consolidates or replaces them:
(a)in relation to Australia: the Acts forming the social security law in so far as those Acts provide for, apply to or affect the following benefits:
(i) age pension;
(ii) disability support pension;
(iii) carer payment in respect of the partner of a person who is in receipt of a disability support pension; and
(b)in relation to New Zealand: the Social Security Act 1964 and the Social Welfare (Transitional Provisions) Act 1990 in so far as they provide for, apply to or affect the following benefits:
(i) New Zealand superannuation;
(ii) veteran’s pension; and
(iii) invalid’s benefit.
2.For the purposes of this Agreement an Australian disability support pension and a New Zealand invalid’s benefit shall be limited to cases where:
(a)the person is severely disabled;
(b)the person was a resident of one of the Parties at the date of severe disablement; and
(c)the person, prior to the date of severe disablement, was residing in the territory of the other Party for a period of not less than one year at any time.
The term Australian resident is defined in Article 5(1):
ARTICLE 5
Residence Definitions
1.“Australian resident” has the meaning given to that term in the social security law of Australia but for the purposes of the Agreement also includes a New Zealand citizen who is not the holder of an Australian permanent visa but is lawfully residing in Australia. In deciding whether a person is residing in Australia, regard must be had to the following factors:
(a)the nature of the accommodation used by the person in Australia;
(b)the nature and extent of the family relationships the person has in Australia;
(c)the nature and extent of the person’s employment, business or financial ties with Australia;
(d)the nature and extent of the person’s assets located in Australia;
(e)the frequency and duration of the person’s travel outside Australia; and
(f)any other matter relevant to determining whether the person intends to remain permanently in Australia;
and “residence in Australia” has a corresponding meaning.
SUBMISSIONS
The Applicant
Mr and Mrs King provided written submissions, to which they spoke at the hearing. They admitted to considerable knowledge of the legislative requirements but argued that despite Mrs King’s British nationality and residence in the UK from 1977 to 1982, she still held permanent residency in New Zealand and regarded herself as a New Zealander. Ms Birch had been included on Mrs King’s passport following her birth. It was argued that the circumstances of Ms Birch’s birth were beyond her parents’ control as they had been obliged to return temporarily to the UK for family reasons.
Mr and Mrs King noted that Ms Birch met the requirements of s 94(1)(b) of the Act, since her intellectual disability was assessed as severe and therefore attracted 20 impairment points under the Impairment Tables.
Mr and Mrs King considered that Centrelink had provided them with inaccurate information before they left New Zealand, as they had not been advised of the effect of Article 2(2)(c) of the New Zealand Agreement and the stipulation that DSP applicants must reside in New Zealand or Australia for not less than one year before the date of the severe disablement. Mr and Mrs King agreed that they had not told Centrelink that Ms Birch was born in the UK and lived there until she was four. They argued that Ms Birch was born with Down Syndrome and not an intellectual disability; and that the legislation’s alleged discrimination against claimants born with disabilities contravenes the United Nations Convention on the Rights of Persons with Disabilities.
Mr and Mrs King believe that intellectual capacity cannot be determined at birth. They told the Tribunal that Ms Birch has undergone two psychological assessments; the first when she was four and the second just before the onset of her epilepsy. They do not know the results of these assessments.
Mr and Mrs King stated they would not have left New Zealand for Australia if they had known that Ms Birch did not qualify for the DSP in Australia. However had they stayed in New Zealand Ms Birch would be bereft of all family support once they could no longer care for her. Following their arrival in Australia Mr King was unemployed and Mrs King was reliant on a New Zealand Age or Widow’s Pension (T2, page 12, SSAT Decision). At the time of the SSAT hearing in June 2013, Mr King had found employment. Mrs King remains on a New Zealand benefit. Ms Birch’s application for DSP was accompanied by Mrs King’s advice to Centrelink that Ms Birch was paying $200 per week to her for rent, food, electricity, telephone and amenities for residing at the family home in Newport, Victoria.
The Respondent
Mr de Uray submitted that, despite Ms Birch’s disability attracting an impairment rating of 20 points under the Impairment Tables and therefore satisfying s 94(1)(b) of the Act, Ms Birch did not satisfy the residency requirements of s 94(1)(e), as she was not an Australian resident at the time she became unable to work. She does not have 10 years of qualifying Australian residence or a qualifying residence exemption. Nor was she a dependent child of an Australian resident.
Mr de Uray submitted that Ms Birch did not satisfy the requirements of s 7 of the Act since she is not an Australian citizen, does not hold a permanent visa and does not hold a special category visa as a protected SCV holder. She has a Special Category visa (subclass 444), which is a temporary visa.
Mr de Uray submitted that, in addition to meeting the requirements of s 94 of the Act, Ms Birch must satisfy the requirements of the New Zealand Agreement. While Ms Birch did met the requirements of Article 2(1), she did not satisfy Article 2(2)(c) as she did not reside ... in the territory of the other Party for a period of not less than one year before the date of severe disablement.
Mr de Uray argued that Ms Birch was born with Down Syndrome and its associated intellectual disabilities and that this was the primary cause of her intellectual disability; not the grand mal epilepsy she developed at 20. While Mr and Mrs King had argued that it was the onset of epilepsy that contributed substantially to Ms Birch’s intellectual incapacity or disablement, Mr de Uray pointed out that there was no medical evidence before the Tribunal to that effect.
TRIBUNAL’S DETERMINATION
All of the evidence and current medical literature points to Ms Birch having been severely disabled from the time of her birth in 1978 in the UK. She does not qualify for any form of disability financial support in the UK.
While Ms Birch does fulfil the requirements of s 94(1)(a) and s 94(1)(b) of the Act, she does not satisfy Article 2(2)(c) of the New Zealand Agreement as she was not an Australian resident when she first experienced a continuing inability to work. She does not meet the requirement of 10 years of qualifying residence or possess a qualifying residence exemption. She does not satisfy the terms of s 94(1)(e) since she is not the dependent child of an Australian resident. Although Ms Birch is not an Australian resident according to the definitions in s 7 of the Act, the provisions of the New Zealand Agreement expand the definition of Australian resident and override the Act.
Article 2(2)(c) of the New Zealand Agreement states that the applicant for DSP must have resided in Australia or in New Zealand for a period of not less than one year prior to the date of severe disablement. It is quite clear that Ms Birch does not satisfy paragraph 2(c) of Article 2 as she has been severely disabled since her birth in the UK on 29 September 1978.
Accordingly, Ms Birch does not qualify for DSP either under the Act or under the New Zealand Agreement.
Mr and Mrs King have been advised to seek further medical information about the results of Ms Birch’s recent MRI scan and the provisional diagnosis attracted by the finding of a midline, probably pituitary, benign tumour. While this may be an incidental finding and of no pathophysiological significance, they will need further medical evidence should they wish to apply again for the DSP on behalf of Ms Birch.
The Tribunal affirms the decision under review.
I certify that the preceding 34 (thirty‑four) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan ........................................................................
Associate
Dated 5 January 2015
Date of hearing 24 November 2014 Applicant In person Advocate for the Respondent Mr Tim de Uray, Principal Government Lawyer Solicitors for the Respondent Program Litigation and Review Branch, Department of Human Services
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security Agreement
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Intellectual Disability
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New Zealand Agreement
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